Whistleblower or wrongdoer? White House correct on Comey violations

Whistleblower or wrongdoer? White House correct on Comey violations
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This week’s press conference has caused a media frenzy after White House press secretary Sarah Huckabee Sanders suggested that former FBI director James Comey committed federal violations in his leaking of memos related to the Russia investigation. The press and various politicians were aghast at the very suggestion that Comey could have violated the law. As I have previously observed, it is a serious mistake for the president and his staff continue these ad hoc comments about the investigation and its key figures. However, Comey has taken on an inviolate image in the media that ignores glaring questions over his own misconduct, an important story that has been largely ignored in most of the coverage.

At the heart of the alleged violations are a series of “memos to file” about Comey’s meetings with President Trump. Comey now admits that he gave at least one of the memos to a friend to leak the information to the media. He insists that he was merely trying to disclose material information to the public. However, when he was fired, it was clear that Comey would be asked to speak to congressional investigators in addition to FBI investigators. Moreover, many of us were already calling for the appointment of a special counsel, which seemed all but certain. In other words, Comey knew that both congressional and federal investigators would be obtaining the memos in short order.

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There was, however, an obvious personal benefit to releasing the information. Before he was fired, both Democratic and Republican leaders, as well as former FBI officials, denounced Comey’s prior conduct as director. In addition, Rod Rosenstein, the respected and nonpartisan deputy attorney general, had already concluded that Comey should be fired due to his record at the FBI. That is not the narrative that Comey relished after being fired by President Trump. So he changed the narrative.

In so doing, Comey disclosed key evidence that undermined, rather than assisted, investigators. The value of these memos to investigators was to have the evidence without the White House knowing about their existence. In later interviews, any conflicting statements could be charged as false statements under 18 U.S.C. 1001, the most successful grounds for prosecutors in past Washington scandals. Moreover, Comey damaged his own value as a witness. Comey was tasked with finding leakers in the administration but then immediately became a leaker himself when it served his purposes.

Comey’s defenders have scoffed that the notion that Comey even acted unprofessionally, let alone illegally. Two fellows at the Brookings Institution, Susan Hennessey and Comey friend Benjamin Wittes wrote, “It’s hard to even understand the argument for how Jim Comey’s memory about his conversation with the president qualifies as a record, even if he jotted it down while in his office.” It is actually hard to understand how it is not. Comey prepared seven memos to the file about nine meetings with the president of the United States as the FBI director about an investigation that could target the president himself. That is something more than “jotting down” thoughts on your day at work.

Comey prepared these memos in the course of that investigation on a secure FBI computer. He then shared the information with his staff and discussed whether the information should be given wider distribution at the bureau. If FBI agents could simply release their views of potential targets from their “personal recollections,” there would be little left of the extensive FBI rules and regulations on the confidentiality of such information. The FBI has since confirmed that these documents are FBI material and that four of the seven memos were classified.

Likewise, Rosenstein indicated that the release of the material was improper and insisted “when we have memoranda about our ongoing matters, we have an obligation to keep that confidential.” Another defense came from New York Times reporter Peter Baker, who took exception to Sanders’s remarks and tweeted during the briefing that Comey never physically handed over any memos. However, Comey has confirmed that he did hand over at least one memo, and possibly more, to a Columbia law professor tasked with leaking the information. It is also still a violation to release FBI information whether by reading it aloud or handing over the document.

This is precisely why all FBI agents sign an agreement against “unauthorized disclosure” of information and promise not to “reveal, by any means, any information or material from or related to FBI files or any other information acquired by virtue of my official employment to any unauthorized recipient without prior official written authorization by the FBI.” It adds that “all information acquired by me in connection with my official duties with the FBI and all official material to which I have access remain the property of the United States of America.” FBI employees are repeatedly warned that they can be charged under a variety of laws including those governing the removal or release of classified information as well as laws like the Privacy Act.

Some have questioned whether Sanders is correct that a criminal charge can be brought under the Privacy Act or whether it is common to do so. Indeed, violations of the Privacy Act can result in a criminal charge under Section III of the law. While it is true that such charges are rare, this does not mean that the underlying conduct cannot be treated as criminal. Indeed, there has been little concern over the investigation of Trump figures like Paul Manafort or Michael Flynn for violations of laws like the Foreign Agents Registration Act, which is rarely actually prosecuted. Indeed, there have been only seven prosecutions under Foreign Agents Registration Act since 1966, when the law was revised.

Comey insisted that he wrote the memos as a type of shield, but he then used them as a sword once he was fired. None of this means that Comey's actions warrant a criminal charge or that those actions exonerate others in the investigation, including President Trump. But at the end of the day, the White House is correct that Comey’s conduct can constitute violations of federal law and regulations.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.